Why KDF boss Kahariri and Duale have been sued
Courts
By
Kamau Muthoni
| Aug 28, 2025
The Chief of Defence Forces Charles Kahariri and former Defence Cabinet Secretary Aden Duale have been sued afresh over the deployment of the military to quell street protests.
In a case filed before the High Court, Simiyu Chaungo, Terry Otieno and Elvis Otieno argue that the two erred by failing to give a definite period during which the disciplined forces would be out of the barracks.
Their lawyer, Peter Mwangi, also claims Kahariri and Duale also did not seek the approval of Parliament as required by the law.
“It is not known for how long the said soldiers are to be deployed to the country as the impugned gazette notice by the 1st Respondent does not disclose the period of their deployment,” says Mwangi.
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The case was first filed in Nakuru before being transferred to Nairobi, as there is a pending dispute over the same issue.
Filed before Justice Lawrence Mugambi, it is a second contest over whether the military can be used to quell protests or be involved in internal civilian affairs. The first case was filed by the Law Society of Kenya (LSK).
In this case, LSK lawyers led by its president, Faith Odhiambo, noted that the last time KDF was in the streets was during the 1982 failed coup. They argued that it is only when the President declares a state of emergency that the military can leave its bases.
“I ask you to disregard the definitions that have been given. The President will make a declaration of emergency. And declaration is made in writing under Article 135. There after it is when the Kenya Army can be deployed and report to Parliament. Nothing was done. Parliament’s permission was only sought after deployment,” argued Odhiambo.
LSK noted that the approval was sought after the deployment had happened, saying that military personnel had already blockaded Lenana and Dennis Pritt Roads by the time the National Assembly was considering the Motion.
“The government is doing what it feels like, scandalising the Constitution. It is only this court that can stop it. We have demonstrated why it is very urgent. Approval was not sought before deployment. This was done for a collateral purpose to muzzle the fundamental rights,” Chrysostom Akhaabi told the court.
In response, Duale, Kahariri and the then Attorney General Justin Muturi urged the court to dismiss the application.
State counsel Emmanuel Bitta told the court that the Article relied upon by the Defence Cabinet Secretary envisaged deployment of military in emergency situations.
He said Kenya’s security is at stake, adding that they need to protect properties and life.
Bitta added that there was no evidence of violation of the Constitution. According to him, the case was based on fears which could not be proved.
“You will notice that it is only a claim has been made on the Bill of Rights chapter. There is no claim on violation of Constitution and there is no relief sought that is premised on the Bill of Rights. The KDF can assist in situations of emergency and co-operate in situations of emergency. They can also be deployed to restore peace in any part of the country,” argued Bitta.
In the meantime, Duale and Kahariri urged the court to consider the chaos, looting and property damage. They insisted that government did not require to seek approval from Parliament.
“It is an interest of national security. Policing cannot stop because of the right to picket. It is speculative that the military are meant to cause fears,” they argued.
The cases will be mentioned on September 22.